How to bring your child back to the UK after an international surrogacy arrangement

If you are expecting a child with the help of a surrogate overseas, your first concern, once your baby has been discharged from hospital, will be to come home as a family and settle into a routine with your new addition. With different options for doing so in different countries, here’s a breakdown of what you need to know.

If your surrogate is married

Assuming your surrogate and her husband are not British, your baby will not be born British because English law will not treat you as your child’s legal parents at birth (despite your biological connection). This means that your child will not be entitled to a British passport as of right.

If your baby is born in the US, he or she will be born an American citizen automatically and you can apply for his or her US passport shortly after birth (usually issued within two weeks). Many parents use this as a method of travel to bring their baby home, although it is strictly a breach of UK immigration rules and will require an entry clearance visa to be given at our border (which is fairly commonplace). To remove any uncertainty about entry to the UK, you should apply for an entry clearance visa before you travel. This takes a number of weeks and involves a detailed application.

If your baby is born elsewhere, he or she is very unlikely to acquire local nationality at birth. Protocol in most countries (such as India and Georgia) involves applying on a discretionary basis to the Home Secretary for your child to be registered as British. This is routinely granted, following an application, and will then enable a British passport application to be made. This can take between two and eight months to be issued, meanwhile your baby will not be able to travel home. Alternatively, you may be able to apply for an entry clearance visa (and temporary passport) to bring your baby home.

If your surrogate is unmarried

In most cases, if the biological father is British, your baby will be born British and, strictly speaking, entitled to a UK passport. This should be applied for as soon as possible after birth and, once issued (which can take between two and eight months, depending on your surrogacy destination) will enable you to travel home with your child.

However, there are some exceptions. If your child is born in the US, he or she will be entitled to a US passport and you may decide to travel home on that instead (as you will be able to do so much more quickly) – please see above for further guidance on this. If your child is born in India you will likely be required to first apply for him or her to be registered as British at the Home Secretary’s discretion, via the MN1 application process. This is due to a history of fraudulent British passport applications in India and ensures that your child is entitled beyond doubt to a UK passport before one is issued. In practice, this does not delay the overall wait significantly.

Further information

Understanding your options and the associated processes at an early stage is crucial in ensuring you get home as safely and efficiently as possible after birth. To find out more, including how to resolve your child’s nationality and immigration status if you return home without a British passport, please contact Nicola Scott, our specialist fertility lawyer, who has been helping clients with the nationality and immigration aspects of their surrogacy arrangements for over five years.